By: Philip Qualo, J.D.

The Nation’s response to the COVID-19 pandemic called on employers to exercise greater flexibility and understanding for employees impacted by COVID-19. For the most part, the series of legislations enacted since the pandemic hit the U.S. have been aimed at expanding unemployment, group health plan coverage, leaves of absence, and providing financial support to struggling employers and Americans faced with an economy that evaporated overnight. However, plan sponsors offering benefits on a pre-tax basis through Internal Revenue Services (IRS) Section 125 cafeteria plans struggled to correlate the nationwide call to provide flexible options employees with the strict terms of their cafeteria plans.

Section 125 cafeteria plans are required to maintain employee pre-tax elections for benefits offered through the plan for the full plan year, with very few exceptions. The type of benefits offered through a cafeteria plan generally include employer-sponsored health coverage, Health Flexible Spending Arrangements (Health FSAs) and Dependent Care Assistance Programs (DCAPs). The IRS also imposes strict limitations on when midyear changes to those elections may be made. As employers have been forced to deal with mandatory shutdowns, furloughs, and newly enacted leave requirements, most plan sponsors found themselves with little guidance on how to handle requested changes to elections made before COVID-19 became a household name.

After much anticipation, the IRS finally released much needed guidance on May 12, 2020. In IRS Notice 2020-29, the IRS provides for increased flexibility with respect to midyear elections under a Section 125 cafeteria plan during calendar year 2020 due to COVID-19. The Notice applies to cafeteria plans that offer employer-sponsored health coverage, FSAs and DCAPs. The Notice permits an employer to amend its cafeteria plans to allow employees to:

• Make a new election on a prospective basis, if the employee initially declined to elect employer-sponsored health coverage;
• Revoke an existing election and make a new election to enroll in different health coverage sponsored by the same employer on a prospective basis (including changing enrollment from self-only coverage to family coverage);
• Revoke an existing election on a prospective basis, provided that the employee attests in writing that the employee is enrolled, or immediately will enroll, in other health coverage not sponsored by the employer;
• Revoke an election, make a new election or decrease or increase an existing election regarding an FSAs on a prospective basis; and
• Revoke an election, make a new election or decrease or increase an existing election regarding DCAPs on a prospective basis.

Notice 2020-29 does not require cafeteria plans adopt these midyear elections. An employer that decides to amend their cafeteria plan to allow for any of the above midyear election changes must adopt a plan amendment. It should be noted that any amendment to a cafeteria plan made under pursuant to the Notice is only valid through December 31, 2020.

It is important to note that an employer is not required to provide unlimited election changes but may, in its discretion, determine the extent to which such election changes are permitted and applied, provided that any permitted election changes are applied on a prospective basis only, and the changes to the plan's election requirements do not result in failure to comply with the nondiscrimination rules applicable to Section 125 cafeteria plans.

In determining the extent to which midyear election changes are permitted and applied, an employer may wish to consider the potential for adverse selection of health coverage by employees. To prevent adverse selection of health coverage, an employer may wish to limit elections to circumstances in which an employee's coverage will be increased or improved as a result of the election.